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19 April 2018
Trying to Get Planned Parenthood to
Comply with the Law
On March 7, 2018, South Dakota Governor Dennis Daugaard signed into law SB 110 to establish certain findings pertaining to pre-abortion counseling practices by abortion providers in South Dakota and to amend provisions regarding mandatory third-party pre-abortion counseling.1 Although the bill overwhelmingly passed the Senate 27-8 2 and the House 56-9 3, it was not without significant controversy in the media. 4-7
The purpose of this article is to review the history of the battles between South Dakota and Planned Parenthood that necessitated the introduction of SB 110.
The historical roots of SB 110 extend back to South Dakota’s Informed Consent Law 8 passed in 2005. That statute, in relevant part, required an abortion provider to make a number of essential disclosures including disclosing to the pregnant mother that “an abortion terminates the life of a whole, separate, unique, living human being.”
In response, Planned Parenthood sued the state claiming the law violated the First Amendment rights of their doctors.
After a preliminary injunction was entered in that case, the state appealed. The entire U.S. Court of Appeals for the 8th Circuit decided to hear the case and reversed the District Court’s decision. The court held the statement that “an abortion terminates the life of a whole, separate, unique, living human being” was not a statement of ideology – as contended by Planned Parenthood – but is a “statement of scientific fact, and that it is both a true statement which is not misleading, and it is relevant to the decision of the pregnant mother of whether or not she wants to terminate her constitutionally protected relationship with her child.” 9
Upon remand, the Federal District Court entered an order directing Planned Parenthood to use the exact same language found in the statute when making the “Human Being” Disclosure. 10
That order was affirmed on a second appeal entered by a three-judge panel in the U.S. Court of Appeals.
Despite the fact that the law requiring Planned Parenthood to make the Human Being Disclosure is more than twelve years old, despite the fact Planned Parenthood sued in an effort to prove that those disclosures contained facts that were not true and lost multiple decisions in the U.S. Court of Appeals, and despite the fact that the Courts ordered Planned Parenthood to make those precise disclosures, current findings are that Planned Parenthood still refuses to do so.
South Dakota had a second en banc Court decision in the Informed Consent litigation. In 2012, the eleven-judge panel of the U.S. Court of Appeals held that the Suicide Disclosure (that “an abortion places a woman at increased risk for suicide ideation and suicide”), was truthful, accurate, non-misleading and relevant to the decision of the pregnant mother. 11
Finally, in December 2012, litigation over South Dakota's 2005 Informed Consent Law was concluded. South Dakota prevailed on all of the issues, but the case took seven and one-half years to litigate and South Dakota had to prevail in three different decisions of the United States Court of Appeals, including two separate opinions by two en banc courts.
In a separate challenge, South Dakota's 2011 Anti-Coercion Statute 12 is now in the courts.
This statute provides that only a physician may schedule an abortion and only 72 hours or more after the physician’s initial screening.
Planned Parenthood sued over that statute as well, and originally a preliminary injunction was entered against the entire statute. In subsequent orders, that injunction was mostly lifted and the seventy-two hour wait period went into effect about four years ago.
Prior to the waiting period going into effect, every woman who went to Planned Parenthood in South Dakota was subjected to an abortion. In the first two years in which state statistics are available, 15% of the pregnant mothers who met with a physician for the initial screening did not come back for the second appointment and did not have the abortion. Thus, 15% of women each year, given the chance to resist unwanted pressures have opted to keep the children they wanted.
With that history and the finding that Planned Parenthood’s disclosures continue to blatantly violate state law, SB 110 was introduced. The bill is simply an amendment to the 2011 Anti-Coercion Statute that: (1) provides findings that expansion of the previously authorized counseling for pregnant mothers at the registered pregnancy help center was found to be necessary because Planned Parenthood failed to comply with the 2005 Informed Consent Laws, the decisions of the Federal Courts, and the orders of the Federal Courts; and (2) adds additional counseling by the pregnancy help centers necessary to protect the rights and interests of the pregnant mothers.
The state has chosen not to punish Planned Parenthood for its dereliction of duty under the Informed Consent Law. It has, instead, chosen to further assist women by helping provide compassionate counseling by counselors who are sensitive to women who value their relationship with their children.
The battles continue.
Planned Parenthood of Minn., N.D., South Dakota, et al, v. Rounds, et al, 530 F.3d 724 (8th Cir. 2008) (en banc).
Planned Parenthood of Minn., N.D., South Dakota, et al, v. Rounds,et al, 650 F.Supp. 2d 972 (Dist Ct., S.D. 2009).
Planned Parenthood, et al, v.Rounds, et al, 686 F.3d 889 (8th Cir. 2012) (en banc).
Fred Deutsch, D.C., is President of South Dakota Right to Life